Appeal from Circuit Court of Vermilion County No. 00MR25 Honorable Michael D. Clary, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McCULLOUGH
On March 25, 1997, claimant, Terry Hamilton, filed an amended application for adjustment of claim in case No. 96-WC-03534, and an application for adjustment of claim, case No. 97-WC-15903, each pursuant to the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 through 27 (West 1996)). Claimant alleged that he had contracted an occupational disease, hearing loss, arising out of and in the course of his employment with employer, Silgan Container Corporation, in case No. 96-WC-03534; and arising out of and in the course of his employment with employer, American National Can Company (ANCC), in case No. 97-WC-15903. The arbitrator found that claimant sustained accidental injuries, permanent partial hearing loss, which arose out of and in the course of employment with each employer and allocated the hearing loss between the two employers. On October 7, 1998, employer ANCC filed a petition for review of the decision of the arbitrator. The Industrial Commission (Commission) reversed the arbitrator's decision, with one commissioner dissenting. The Commission found that employer ANCC was not claimant's last employer as required under section 1(d) of the Act (820 ILCS 310/1(d) (West 1996)) and "[claimant] is not entitled to benefits." On administrative review, the circuit court of Vermilion County confirmed the Commission's decision. The issue before this court is whether the Commission's finding that employer ANCC was not claimant's last employer as required under section 1(d) of the Act and, therefore, claimant is not entitled to benefits, was contrary to law. We affirm.
Claimant began employment with ANCC, a manufacturer of tin cans, in 1970. On August 1, 1995, Silgan Container Corporation bought ANCC. Claimant continued in his employment, now with Silgan Container Corporation. On January 23, 1996, claimant filed an application for adjustment of claim and identified American Can Company/Silgan Container Corporation as employer, case No. 96-WC-03534. On March 25, 1997, claimant filed an amended application for adjustment of claim in No. 96-WC-03534 naming Silgan Container Corporation as employer. On March 25, 1997, claimant also filed an application for adjustment of claim and identified ANCC as employer, case No. 97-WC-15903. Claimant later motioned the Commission to consolidate the cases, stating that "these claims involve hearing loss sustained during periods when two different employers owned the plant where [claimant] worked." The arbitrator entered an order on August 13, 1997, allowing the motion.
After a hearing on May 12, 1998, the arbitrator entered a decision in each case finding that claimant "was exposed to excessive noise levels which resulted in hearing loss" with the date of last exposure being July 31, 1995, as to employer ANCC, and January 8, 1996, as to employer Silgan Container Corporation. The arbitrator apportioned compensation accordingly, ANCC to pay to claimant the sum of $410.43 per week for a period of 60.7 weeks and Silgan Container Corporation to pay to claimant the sum of $410.43 per week for a period of 21.2 weeks. On October 7, 1998, employer ANCC filed a petition for review of the decision of the arbitrator. Neither Silgan Container Corporation nor claimant sought review of the decision of the arbitrator. The Commission found that employer ANCC was not claimant's last employer as required under section 1(d) of the Act (820 ILCS 310/1(d) (West 1996)) and "[claimant] is not entitled to benefits."
The issue before this court is whether the decision of the Commission was contrary to law. Before a reviewing court may overturn a decision of the Commission, it must find that the award was contrary to law or that the Commission's factual determinations were against the manifest weight of the evidence. Freeman United Coal Mining Co. v. Industrial Comm'n, 188 Ill. 2d 243, 245, 720 N.E.2d 1063, 1065 (1999).
Claimant argues that section 1(d) of the Act does not foreclose an award for hearing loss against ANCC, "a prior employer." Section 1(d) of the Act provides:
"The employer liable for the compensation in this Act provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease claimed upon regardless of the length of time of such last exposure ***. ***
The insurance carrier liable shall be the carrier whose policy was in effect covering the employer liable on the last day of the exposure rendering such employer liable in accordance with the provisions of this Act." 820 ILCS 310/1(d) (West 1996).
In the present case, Silgan Container Corporation was "the employer in whose employment the employee was last exposed to the hazard of the occupational disease claimed" within the meaning of the Act. 820 ILCS 310/1(d) (West 1996).
In Thermos Co. v. Industrial Comm'n, 83 Ill. 2d 54, 413 N.E.2d 1246 (1980), cited by claimant, it was necessary to determine "the date of the last exposure which caused the claimant's incapacity." Thermos Co., 83 Ill. 2d at 58, 413 N.E.2d at 1248. There was no issue as to last employer and such a determination was not necessary in order to impose liability on the employer. It pertained to the wholly separate issues of (1) when compensation should commence, and (2) which of the employer's multiple insurance carriers were required to pay that compensation. Those matters are not in dispute here.
In Fleming v. Industrial Comm'n, 95 Ill. 2d 329, 333, 447 N.E.2d 819, 821 (1983), also cited by claimant, the supreme court held that an award to a claimant for his hearing loss was not precluded merely because claimant continued to be exposed to the disabling cause. Here, the award to claimant has been precluded because employer ANCC is not the employer in whose employment the claimant was last exposed to the hazard of the occupational disease claimed. See also John Deere Plow & Planter Works of Deere & Co. v. Industrial Comm'n, 168 Ill. App. 3d 1096, 523 N.E.2d 386 (1988) (claimant filed an application for adjustment of claim under the Act alleging that his hearing loss arose out of and during course of his employment as a welder and named respondent as employer; claimant had performed welding for engineering and construction firms but did not name them as an employer in an application for adjustment of claim under the Act); Dresser Industries v. Industrial Comm'n, 237 Ill. App. 3d 150, 604 N.E.2d 365 (1992) (claimant testified that he had been employed as a welder by the respondent since November 1, 1982, when the respondent took over the plant from International Harvester; prior to the takeover of the plant by respondent, claimant had worked for International Harvester since 1970; claimant's only application for adjustment of claim under the Act alleged that his hearing loss arose out of and during course of his employment with respondent, Dresser Industries).
Moreover, the Illinois Administrative Code (Code) (50 Ill. Adm. Code §7130.30 (1996)) provides:
"An employer shall be liable for the entire occupational deafness to which his employment contributed unless the employer can establish the extent of [p]petitioner's hearing loss prior to July 1, 1975. If the employer can establish prior hearing loss, the employer shall only be liable for ...